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Ruling expected within days on hepatitis C case

New Hampshire Union Leader

October 17. 2012 10:33PM

CONCORD - A Merrimack County Superior Court judge is expected to rule by the end of this week on whether to allow the state's investigation of the hepatitis C outbreak at Exeter Hospital to continue.

Attorneys for the hospital had sought a protective order in August from turning over patient records to public health officials in their probe of the outbreak. Providing the information sought by the officials would violate patient privacy laws, the hospital's attorneys argued.

A hearing on the case was held Wednesday, and Judge Richard McNamara is expected to issue a ruling by the end of the week.

The Attorney General's Office, which is representing the state Division of Public Health Services, sought a declaratory judgment in the case earlier this month, arguing that Exeter Hospital was holding up the investigation at a time when there are several ongoing public health concerns.

The officials are trying to complete their investigation of the hepatitis C outbreak, which is believed to have been caused by a former hospital technician, David Kwiatkowski, who infected patients by using syringes filled with the painkiller Fentanyl on himself and then returning the contaminated needles. Thirty-two former patients have contracted the strain of hepatitis C linked to Kwiatkowski.

Several civil lawsuits brought by patients against the hospital are pending.

Exeter's attorney, Scott O'Connell, said the hospital has a legal obligation to protect patient privacy.

'Under federal law, the state is only entitled to the minimum amount of information needed to do its investigation, and the state wants access to everything. It has not made any effort to be discrete. Mr. Kwiatkowski worked at the hospital between May 2011 and May 2012. At a minimum it should limit its request to that time period. And they need to tell us the names of the patients whose records they want to review,' O'Connell said.

Assistant Attorney General Anne Edwards denied that the public health department was seeking access to 'everything.'

'As a public health investigation, they need to have access to medical records and be able to conduct employee interviews. They can't be required to disclose what they're asking for. That will interfere with the independence of the investigation,' Edwards said.

Edwards said in the case of disease outbreaks, including the latest fungal meningitis cases linked to drugs manufactured in Massachusetts, time is of the essence.

O'Connell said the hospital sought the protective order for guidance on how to respond to the state's probe.

'Assuming the ruling is in line with the law, we'll follow it. But we have no plans for an appeal at this time,' he said.

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Ted Siefer may be reached at

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